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Attorney Selwyn Pieters was on the phone in the lawyers’ lounge during a break at the Brampton courthouse when he says an angry and aggressive librarian interrupted his call to question his right to be in the area reserved by the Peel Law Association for lawyers and law students.

It was librarian Melissa Firth’s demand for identification on May 16, 2008 — made only to Pieters and his two black colleagues, lawyer Brian Noble and law student Paul Waldon — that has now wound its way to the Ontario Court of Appeal. Were the three African-Canadians, two of whom sported dreadlocks that day, victims of discrimination? Or were they hyper-sensitive and saw racism where there really was none?

It’s a tough case to establish either way. How do you prove what was in someone’s mind? Is it enough for a minority to feel they’ve been discriminated against, or should they have to provide direct evidence? Is crying racism enough to make it real?

In December 2010, the Human Rights Tribunal of Ontario agreed Pieters and Noble had been subjected to racial profiling and awarded them $2,000 each for injury to their “dignity, feelings and self-respect.”

Challenged as to why no one else was being asked for ID, the law association librarian said she knew everyone else present at the time was a lawyer. But that wasn’t the case: Also in the lounge that day were two white women who had never been there before.

Vice-chair Eric Whist ruled that Firth didn’t provide a credible explanation as to why she singled out the three black men for “aggressive and demanding” questioning, leaving him to infer that her decision was “tainted by considerations of their race and colour.”

“Both applicants testified to the humiliation of their experience and that they have not returned to the Brampton Court House,” Whist said in his decision.

But in February, a Divisional Court looked at the same facts and came to the opposite conclusion. The judicial review determined there was no evidence of any discrimination — that Firth was just doing her job and had questioned hundreds of visitors to the lounge — so it quashed the tribunal’s ruling and ordered Pieters and Noble to pay $20,000 in legal costs to Firth and the Peel Law Association.

“A complainant cannot merely point to his or her membership in a racialized group and an unpleasant interaction to establish a prima facie case of discrimination,” the court ruled.

“If the divisional court decision stands, it will turn proving racial discrimination on its head and make it extremely difficult,” warned Pieters’ lawyer Geri Sanson outside the hearing. “It’s almost as if the court is asking for direct evidence, making these cases difficult to prove.”

Sanson told the appeal judges that the divisional court overstepped its bounds by re-interpreting the facts and then arriving at a diametrically opposed decision. Instead, the human rights tribunal, with its exceptional expertise, is supposed to be accorded the highest “deference,” with its findings considered final unless it’s “patently unreasonable.”

Mark Freiman, lawyer for Firth and the law association, argued that the tribunal’s ruling was, in fact, not reasonable at all because it was based on “irrational fact-finding.”

“There’s precisely as much evidence before the tribunal to link whatever happened between Ms. Firth and Mr. Pieters and Mr. Noble to an issue of race as there is to link it to an issue of dreadlocks — which is none.”

The men were questioned because they were closest to the door — and not because they were black, insisted Freiman. There were well-known problems with paralegals and members of the public using the lounge and part of Firth’s duties was to ask for identification. She had done so hundreds of times before, to people of all races.

But the tribunal unfairly reversed the burden of proof and put the librarian in the impossible position of trying to prove that her routine conduct wasn’t motivated by racism. Without considering the person’s explanation or intention, Freiman told the appeal court, “it would be impossible to defend yourself.”

And then we are in danger of being left only with witch hunts, and not fair hearings.

Discrimination case tough to establish

Attorney Selwyn Pieters was on the phone in the lawyers’ lounge during a break at the Brampton courthouse when he says an angry and aggressive librarian interrupted his call to question his right to be in the area reserved by the Peel Law Association for lawyers and law students.

It was librarian Melissa Firth’s demand for identification on May 16, 2008 — made only to Pieters and his two black colleagues, lawyer Brian Noble and law student Paul Waldon — that has now wound its way to the Ontario Court of Appeal. Were the three African-Canadians, two of whom sported dreadlocks that day, victims of discrimination? Or were they hyper-sensitive and saw racism where there really was none?

It’s a tough case to establish either way. How do you prove what was in someone’s mind? Is it enough for a minority to feel they’ve been discriminated against, or should they have to provide direct evidence? Is crying racism enough to make it real?